An Analysis of The Policy on Same-sex Marriage in Massachusetts

When asked to think about a policy affecting myself or my community, I found it difficult. I personally haven’t had very many troubles or interesting stories related to policy. However, my LGBT friends have. This is a policy that affects my whole community of Massachusetts as well as the close community of friends I have around me. The policy I’ve decided to analyze is same-sex marriage. In Massachusetts, it has been legal for people of the same gender to be married since 2004. In the rest of the country, it is still an issue that gay and lesbian individuals struggle with every day.

In order to analyze a policy, one must go back to its roots. Where did it all begin? One may argue that it all began when marriage did, or that it began when men and women started coming out. In the case of Massachusetts, however, it began with a lawsuit. Like many policy or law changes, there was a lawsuit against a state department that called for changes. In the case of same-sex marriage, this lawsuit is Goodridge et al. vs. Department of Public Health. The court case began on March 4th, 2003 and ended on November 18th, 2003. On November 18th, it was ruled by the Massachusetts Supreme Judicial court that same-sex couples have the right to marry under the state constitution. (Gay & Lesbian Advocates & Defenders, n.d.). How did this decision come to be? Who was involved? What issues surround the policy that came about? This is a complex issue that many people are still fighting for or against all over the country.

In the case of Goodridge et al. vs. the Department of Public Health, GLAD represented seven couples who had been denied marriage licenses in Massachusetts. The seven couples were Hillary and Julie Goodridge, David Wilson and Robert Compton, Michael Horgan and Edward Balmelli, Maureen Brodoff and Ellen Wade, Gary Chalmers and Richard Linell, Heidi Norton and Gina Smith, and Gloria Bailey and Linda Davies. All of these couples faced unique challenges due to the lack of a legal marriage. Same-sex couples have been facing these challenges for a long time, and are still facing them in many states across the country. These couples and many others in the state are the main stakeholders in the policy MA has that allows same-sex couples to marry.

What are some of the benefits and basic rights that they were missing out on before they were legally married? When Julie gave birth to her and Hillary’s daughter, their daughter had issues with swallowing birth fluid and had to be placed in Neo-natal Intensive Care. Hillary had a difficult time being able to see her daughter or Julie (who was also recovering from a difficult birth) simply because they were not legally married. They even have each other’s health care proxies but Hillary still was not allowed to see Julie or her new daughter. In the case of Rob and David, Rob has issues with his heart. David also has some medical problems. The insurance companies would not speak to the partner simply because they were not legally married. In the case of Michael and Edward, they were able to obtain health insurance for Mike through Ed’s work but had to pay income tax on the value of the coverage- legal spouses do not have to do this.

In 1999, Ellen wade became ill with breast cancer. Because of the state of same-sex marriage laws, she was uncertain that her partner and daughter would be provided for financially and emotionally should she pass away. Gary Chalmers was unable to add his partner, Rich to his family health insurance plan because they were not legally married. As a result, a separate health insurance policy had to be purchased which would not have happened if his partner was his spouse. Heidi Norton and Gina Smith have two sons. The sons were carried and delivered by Heidi, and given the last name Norton Smith to show that they were both women’s children. Gina had to file adoption papers because Heidi and Gina were not married; therefore Gina had no parental rights. Gloria and Linda met in 1970, and worked at the same mental health agency. Because their relationship would have provided problems at their place of work, they founded their own psychotherapy practice, rather than live in secrecy.

Gloria and Linda faced many difficulties financially, especially when trying to buy a house- the bank would not finance them together because they were not related. They were also unable to purchase joint health insurance. Those were just a few examples of the hardships same-sex couples go through when they cannot be legally married. (All anecdotes adapted from Good ridge et al. vs. Department of Public Health case files) Along with those specific hardships, it is a basic human right to feel accepted. All of the couples outlined about want to be married for the sake of the word marriage- they want legal recognition of a very real relationship. Some people ask why they couldn’t just be satisfied with a civil union. The simple answer is, they are not the same, and in some states Civil Unions are not even legal.

To understand the differences between the two, we must first understand what a civil union is. According to GLAD, a civil union “provides legal protection to couples at the state law level, but omits federal protections as well as the dignity, clarity, security and power of the word “marriage’.”(Dec. 2011) It first was created by Vermont in 2000 and was adopted by New Hampshire, New Jersey, Rhode Island, Hawaii, Delaware, and Illinois. A civil union is NOT a marriage, which some state leaders would want us to believe. Many of the couples I outlined above had commitment ceremonies, similar to weddings, which causes people to be confused. Although in any state and any country a same-sex couple can promise themselves to each other, in many states and countries it is not legally binding.

One of the main differences between a marriage and a civil union is the word itself. When you fill out any kind of form for work, school, government there are always boxes for single, married, widowed, or divorced. There is no box for civil unions. Aside from legal forms, a difference in the words is that marriage carries a certain connotation. We all know what it means to be married, and we all know the rights that come along with a wedding band and a marriage certificate. Couples in civil unions don’t have the chance to experience all that comes along with a marriage. Civil unions are extremely limiting in several ways. According to GLAD, there are several factors limiting the rights of couples in civil unions that are not present in legal marriages. These factors are:

• Portability- A marriage is usually respected no matter what state you go to, civil unions are not, as not all states have them.
• Ending a civil union- “If you are married, you can get divorced in any state in which you are a resident. But if states continue to disrespect civil unions, there is no way to end the relationship other than by establishing residency in a State that respects the civil union.” (GLAD, Dec. 2011)
• Taxes and federal Benefits- Legal marriage entitles couples to 1,138 federal benefits including work leave to care for a family member, and Social Security survivor benefits. They are also limited in certain tax functions, as civil unions are not recognized federally, but on a state level. This can cause issues in certain systems, such as Medicaid and government assistance such as food stamps.
• Forms- I’ve already mentioned this, but there is usually no box on federal or even state forms for “civil union,” so couples are often left in limbo as they are neither married nor single. Some forms have new options such as “living with partner” but this is not the same as marriage or civil union.
• Second-Class Status-A civil union was created just for same-sex couples. This is separate and unequal treatment. The US constitution calls for equality for all, and people are still using that to fight for federal recognition of same-sex marriage.

All of these factors went into Massachusetts’ decision to take a step forward and make same-sex marriage legal. But how exactly did it happen? We’ve already identified the stakeholders in this policy-the seven couples who went to court for it and LGBT people all over the country. And we all know what the stakes are- equal rights for everyone to marry the man or woman they love and want to spend the rest of their lives with. Also at stake is adoption, and raising children- currently, two people can be legal parents of a child but there is a rigorous amount of paperwork involved- If the marriage was legal everywhere, there would be less paperwork and far less discrimination. But how has Massachusetts come about taking this large step forward? In order to answer this question we must look at the framework given by Deborah Stone in Policy Paradox: The Art of Political Decision Making.

According to this framework, there are five basic steps to forming a policy, they are:

1. Identify objectives
2. Identify alternative courses of action for achieving objectives
3. Predict the possible consequences for each alternative
4. Evaluate the possible consequences of each alternative
5. Select the alternative that maximizes the attainment of objectives (Stone, p.8)

While not all policies follow this outline exactly, we can use it as a starting point in almost any policy one can think of. Massachusetts had a long road to equality on the subject of same-sex marriage, but succeeded when Goodridge et al. vs. Department of Public Health was decided in Goodridge’s favor.

Identify objectives

The objectives in this case were very clear from the start, the very foremost objective being equality for all men and women. MA has been at the forefront of many civil rights issues, so it only made sense that they would lead this one too. Many couples, such as the Goodridge’s had been together for many years and even had a child or two that they rose together as their own flesh and blood. However, with no legal recognition of their family unit, the couples, and often the children, were subject to feeling like an outsider in their own community.

Children can be especially cruel when one child does not have a set of married parents. Adults in same-sex relationships are often cast aside in matters such as anything that has spousal benefits, like health insurance or life insurance. In a nation such as The USA, where our constitution says it values equality, it boggles the mind as to how homosexual relationships can be an issue.

To put it simply, the objective of the seven couples, and GLAD in the case of Goodridge et al. vs. Department of Public Health, was to provide equality- to provide marriage for all people. In doing so, this would be an umbrella over several smaller objectives- to make children feel their family was whole, to provide health and life insurance to couples of any orientation, to lessen confusion on legal and federal forms, and to grant full, non-discriminatory status to any couple who chose to be together out of mutual love and respect.

Identify Alternative Courses of Action for Achieving Objectives

To many people, the only obvious course of action would be to cut out the part of the law where it says marriage is only one man and one woman. In essence, that is what Massachusetts has done, with the repeal of section 28A of Chapter 207 of the Massachusetts constitution. But there were other options. Massachusetts could have also enacted Civil Unions, such as Vermont did. MA could have also kept marriage the same as it had always been. As you can see, there are not many alternatives to providing complete equality for all people in the state of Massachusetts.

Predict and Evaluate the Consequences of Each Alternative

There are positive and negative consequences to nearly any action or policy in the world. It’s something akin to “every action has an equal and opposite reaction.” Every proposed policy has a predicted and a real consequence. Let’s take a look at each alternative, and the specific changes it would bring with it.

If Massachusetts had enacted civil unions, there would have been changes made to the state constitution, as well as in town offices and courts. In the case of Vermont, the civil union law also started with a court case, Baker vs. Vermont. In the case, it was decided that “same-sex couples are entitled under Chapter I, Article 7, of the Vermont Constitution to the same benefits and protections afforded by Vermont law to married opposite-sex couples” (Baker vs. Vermont, 2000). This decision created an entirely new family unit, which supposedly was parallel to civil marriage. The Civil Union was created specifically for same-sex couples. The positive consequences of that are the legal rights that re afforded to couples within the states.

Nearly all the same rights apply as for a marriage, except where concerned legally. This would be a step up from completely banning same-sex couples from marriage, but it still has its flaws. For example, if residents of Vermont, who entered into a civil union there, wanted to move to another state, such as Kentucky, their civil union would not be valid, and they would not be recognized as a couple because Kentucky has no such laws.

A marriage, on the other hand would be accepted, at least socially, almost anywhere. Another consequence of enacting civil unions would be that they are not federally recognized statuses. There would still be issues such as taxes and if one partner as in the military (for example), their civil union partner would receive no benefits. So to sum up civil unions, the negative consequence would be no federal recognition or benefits, and the positive would be that on a state level, same-sex couples in civil unions would have the rights as heterosexual couples in a civil marriage.

Leaving the marriage laws the same as they had been would mean not moving forward. It would mean being stuck in an era of discrimination and inequality. While it was a possible option, it would not have been a fair one. Perhaps the only positive consequence of not providing marriage equality would be keeping the religious protestors quiet, and not hearing such things as “Gay marriage could potentially lead down a "slippery slope” ending with giving people in polygamous, incestuous, bestial, and other nontraditional relationships the right to marry.” ("Do We Really Want to Redefine Marriage," Aug. 11, 2010) In my opinion, and many others, not changing anything would mean making same-sex couples continue to feel like second-class citizens. There is no positive consequence for exclusion.

The third option for Massachusetts would have been same-sex marriage. In my opinion, this was the best option for Massachusetts, and an option I think more states in our “land of the free” should consider. The only negative consequence of implementing same-sex marriage in Massachusetts is that it is still not federally recognized. In order for the marriage to be recognized, the couple would have to move to a state that has legal same-sex marriages.

The positive consequences far outweigh the negative one, however. Recognition of same-sex marriage in the state would entitle same-sex couples to all of the same state level benefits as heterosexual marriages. Along with legal benefits, comes the “consequence” of social acceptance. Everyone knows what the word marriage means. Everyone may have different definitions, but in essence it means that two people are committing to each-other entirely for all the days of their lives. If I were in any type of policymaking position in Massachusetts, marriage would be the option I would want for my State.

Select the Alternative that Maximizes the Attainment of Objectives

On May 17th, 2004, Massachusetts did just that. One of the first same-sex marriages occurred in Brookline, MA on that date. The couple was Robyn Ochs and Peg Preble. They awoke at 5 AM on May seventeenth, and as soon as they were able led “A wedding caravan of engaged couples from their predominately gay neighborhood” (Jones, May 2004) to their nearest courthouse to apply for marriage licenses. Preble and Ochs didn’t want to wait the mandatory 3 days between the license and the actual wedding, so they did everything the same day. Hey filled out the application, and headed to the court house to get the waiting period waived.

The judge at that courthouse signed many waivers that day, and sent people off to be married, finally, fully legally in the state of Massachusetts. The marriage ceremony was done by a Justice of the peace, and the only change to the traditional vow was that instead of “husband and wife,” he pronounced the happy couple spouses. Finally, a lesbian couple was recognized as completely legally married in the State of Massachusetts.

After same-sex marriage was legalized, there was the issue of how it would be implemented. There were many factors that would need to go into implementing same-sex marriages. The first thing that needed to be changed was legal and town forms. The most prominent change was that the forms now read “party a” and “party b” instead of “man” and “woman.” Another change that occurred along with, and slightly after the legalization of same-sex marriage was that blood tests were no longer required to be legally married. Along with official changes, there has been a shift in the way marriage and families are talked about in schools and socially. “Family” units in elementary and pre-schools are including children with two fathers or mothers in their studies and examples.

Books on the subject are also more widely available and read ion schools. Another major change in the state is adoption and birth certificates. “Birth certificates in Massachusetts have been changed from ‘mother’ and ‘father’ to ‘mother/parent’ and ‘father/parent.’ Homosexuals who adopt can revise children's' existing birth certificates.”(Camenker, 2012). Along with that, there is no need for the non-biological parent of a child to adopt if the couple is married.

The intended consequences of the same-sex marriage laws and policy in Massachusetts were that all men and women, no matter their sexual orientation, would have the legal right to marry a man or a woman. This was achieved on a state level. The unintended consequence of same-sex marriage in Massachusetts is that there is still a lot of judgment passed. There are still protestors every day fighting the issue. Then there is the matter that it is still not recognized on a federal level. In fact, the defense of Marriage Act was proposed to make it illegal for same-sex couples in the country to be married. Thankfully, DOMA was pronounced unconstitutional, and the federal laws remain the same.

There are holes in Massachusetts’ policy, as with any policy. In order for a same-sex marriage to be fully recognized, the same changes that were made here need to be made federally. We’re well on our way to being a completely equal and free country, but there is still a lot of work and policy-making to be done. Protests are inevitable, but policy-makers need to rise above and do what’s right for the civil rights of everyone in the great nation of then United States of America.